Mara v. Tunney

236 A.D. 82, 258 N.Y.S. 191, 1932 N.Y. App. Div. LEXIS 5893

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1932
• Status: Published

Opinions

McAvoy, J.

An agreement was made admittedly between Timothy J. Mara, and James J. Tunney and William Gibson, on or about April 3, 1926, to arrange for defendant Tunney a boxing contract with one Jack Dempsey, then heavyweight champion of the world.

Mara’s version is that in April, 1926, he entered into an agreement with Tunney and Gibson, Tunney’s manager, whereby in consideration of his co-operating with them in procuring for Tunney a boxing match with Dempsey during the year 1926, Tunney and Gibson agreed to pay him ten per cent of Tunney’s share of the purse on that match, if Tunney won, and thereafter twenty-five per cent of all moneys received by them from the exploitation of Tunney as the heavyweight champion.

Tunney’s version was merely to the effect that he approved of certain suggestions of Mara; that he offered Mara $25,000 if the bout could be arranged in New York State, but that Mara said he was interested only in the sport and not in the money.

In a letter dated June 6, 1926, Tunney wrote to Mara virtually confirming Mara’s version of the agreement. No mention was made in the letter that the bout would have to take place in New York State. A condition so vital would not be excluded if it were a sine qua non to the effectiveness of the contract. We think proof on this subject lacked weight to support a verdict against the plaintiff’s proof by documents.

Tunney testified that plaintiff had told Gibson over the telephone that he, Mara, would prevent the bout from taking place in the State of New York, unless he got a contract for twenty-five per cent from the Tunney-Dempsey match, and from all exploitation of Tunney, and containing the further suggestion that the contract was contingent upon Tunney’s winning the championship in a State where a decision was permitted to be rendered.

Tunney also told Gibson that Mara could have ten per cent of the first match, but that it would have to come out of Gibson’s share, and that Gibson reported that plaintiff had consented to ten per cent of the first match, but would have to have twenty-five per cent if defendant won the championship. Tunney said: “Well, I won’t agree to that.”

Tunney asserted that he told Gibson that he objected to the contract because it did not cover the condition of holding the match in New York, and Tunney states that Gibson told him that Gibson tried to put in the condition in case the match comes to New York, but that Gibson urged him to sign the contracts without that condition.

This testimony, which was objected to and exception taken, was intended to establish whether Mara made any threats which induced the signing of the Tunney letter of June 6, 1926, and the contract inclosed, and whether there was an understanding between plaintiff and defendant through Gibson that plaintiff’s contract was contingent on the match being held in New York.

We think that it was prejudicial to plaintiff to permit defendant Tunney to testify to the alleged conversations said to have occurred on May first and second and on June fifth, with Gibson, and in admitting in evidence letters and telegrams passing between Tunney and Gibson. Certainly these communications of May first and second and early in June could not have influenced Tunney’s state of mind on April third, nor could they have shown his state of mind on April third, the date of the original agreement.

There was manifest error in not striking these telephonic communications from the record, and in submitting this damaging evidence to the jury even after the defense of duress was withdrawn by defendant.

We think, too, that the court erred in charging the jury that they might find that the agreement of April third was based on the plaintiff’s exerting illegal influence upon the Boxing Commission and the License Committee, and that in that case they should find a verdict for the defendant. No proof to substantiate such a charge was offered.

The preponderance of the evidence, particularly in the documentary proof, warrants a reversal of the judgment for defendant, and a new trial for the plaintiff.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Merrell, Martin and O’Malley, JJ., concur; Finch, P. J., dissents and votes for affirmance.